Women and children: the cutting edge of international law.

The lecture began at 5:00 pm, Wednesday, April 9, and was given by Radhika Coomaraswamy, former UN Special Representative of the Secretary-General on Children and Armed Conflict; the discussant was Diane Marie Amann, Emily and Ernest Woodruff Chair in International Law, University of Georgia School of Law; Special Adviser on Children in and affected by Armed Conflict, International Criminal Court, Office of the Prosecutor. *

WOMEN AND CHILDREN: THE CUTTING EDGE OF INTERNATIONAL LAW

By Radhika Coomaraswamy ([dagger])

PREFACE

Sometime at the end of 2011, while I was still the United Nations Special Representative of the Secretary-General for Children and Armed Conflict, I met an ambassador from an Asian country just before a United Nations Security Council meeting on children and armed conflict. He told me that I was leaving the United Nations at the right time, because "the era of human rights is over, it has been shown up for what it is, a product of western liberalism and now a modern day foreign policy weapon of western imperialism." (1)

A few months earlier I was in the Central African Republic (CAR) with three generations of women from the same family, who had been brutally raped by the forces of Jean Pierre Bemba when he entered CAR from the Democratic Republic of Congo in 2002. (2) They were getting ready to go to The Hague to testify against him. They described the events in detail, and I could feel their sense of vindication and hope. Even if Bemba were not convicted, they found consolation in the fact that someone had recognized the crimes committed against them.

This, then, is the complexity of human rights in the modern world. Increasingly, member states, along with individuals and groups in the Global South, challenge both the epistemology and practice of human rights. But despite their efforts, at the grass-roots level there is a groundswell of support for the idea of human rights, including women's and children's rights, as more and more groups have begun to use the discourse and strategy of the human rights movement to fight for equality and social justice.

INTRODUCTION

In the traditional world of international law, issues of war, peace, and security have always taken precedence over other developments. (3) The Westphalian origins led to a focus on dispute resolution and the establishment of an international order that will enable peace. Even today the media attention of the world remains on the Security Council, whose proceedings dominate the discussion of international law and international relations.

However, hidden from view away from the drama of the use of force and international peace and security, there has been a quiet, creeping revolution in the area of women's and children's rights at the international level, which may have far-reaching consequences on how we think about international law and its place in the modern world.

I have divided this lecture into three parts: (I) I will identify five ways in which women's rights and children's rights have impacted the substance and procedure of international law, especially during the last few decades; (II) I will describe the backlash against some of these developments that has led to a certain paralysis in their contemporary evolution; and (III) I will identify a way forward--always keeping the interests of women and children in mind.

Before I proceed, I would like to outline three short caveats.

First, international human rights law is often seen as a sub-regime of international law. (4) In the same way, women's and children's rights are a sub-regime of international human rights law, with a level of autonomy and integrity relevant to their specialization. Nevertheless, as we will see later, what happens in the international arena to the regime of human rights also affects issues relating to women and children and vice versa. Some traditional international lawyers may dismiss all this as issues within the periphery of the periphery, but in some ways they have already begun to play a significant role in international relations.

Second, although I have brought the issues of women and children together for the purpose of the lecture, we must recognize that there are strong differences between these mandates. Women are adults, and their main quest is for empowerment and equality with men. While there are similarities between women and children when it comes to matters of protection during war, there are major differences in the quality and nature of their agency and right to participation.

Third, I spent a great deal of my life as a researcher and an academic working for a think tank in Sri Lanka. I was also fortunate to have the experience of being United Nations Special Rapporteur on Violence Against Women and the Special Representative of the Secretary-General on Children and Armed Conflict. The tension between the world of ideas and the world of the practitioner is particularly interesting to me, as over time I have found that what is ideal is not doable, and what is doable may compromise one's ideals.

FIVE WAYS IN WHICH INTERNATIONAL LAW IS IMPACTED

There are five ways in which I think women's rights and children's rights have impacted the substance and procedure of traditional international law. They are as follows:

Women's rights and children's rights have had a unique impact on the process of creating international law and its relationship to state practice.

More than any other issues, the question of women's and children's rights pierces the veil of state sovereignty--the foundation of traditional international law.

Women's and children's issues have led to rethinking how to deal with nonstate actors within the framework of international law.

Since the 1990s, international criminal jurisprudence has developed new and innovative doctrines with regard to crimes against women and children with pioneering efforts by the ad hoc tribunals and the International Criminal Court.

The role of NGOs involved in women's and children's issues has been unprecedented at the international level, forcing a recognition of civil society and its role in international deliberations.

The Process of Creating International Law

The first area of impact is in the process of creating international law and standards. Those of us who are old enough to remember the old masters of international law must recall how it was drilled into us that only decades of state practice without objection creates the sense of legal obligation that is the basis of international law. (5) This may be supplemented by treaties, which generally tended to be bilateral and concerned issues of peace and security or trade and commercial activity.

Jose Alvarez has documented the revolution that has taken place since the 1970s in the realm of treaty-making and the proliferation of international multilateral treaties creating obligations and standards on a whole host of matters--treaties usually negotiated under the auspices of the United Nations. (6) The Convention on the Elimination of Discrimination Against Women and the Convention on the Rights of the Child were also drafted during this period.

However, the Women's Convention and the Children's Convention were unique. This was not because they were multilateral in nature, but because, instead of codifying existing practice, they tried to transform state practice at the national and international levels. These conventions imposed positive duties on states, (7) and even at times tried to transform the behavior of individuals within nation-states. Article 5(a) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is one such example:

State Parties shall take all appropriate measures:

to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. (8) As is well known about CEDAW, for example, it truly pushes the frontiers of international law, imposing obligations on issues of equality, protection, and transformation at the same time. It includes both political and civil rights as well as economic and social rights. It deals with both the public and the private sphere. Though it is revolutionary, it takes a gradualist approach, stating that "appropriate measures be taken without delay." (9)

This transformative impetus was a product of the intellectual climate of the 1960s and the 1970s and continued with vigor at the international level well into the 1990s. (10) The fact that we had come a full circle from hundreds of years of state practice leading to the creation of international law, to an era where multilateral treaties attempted to change state practice and the behavior of their citizens, is one of the unique developments of the latter half of the twentieth century.

The problem with transformative projects, especially those originating at the international level, is the gap between aspiration and implementation. Both the Women's Convention and the Children's Convention are the most ratified conventions in the world. (11) However, the Women's Convention has so many reservations by a diverse number of states that its value as a normative standard raises some doubts. The CEDAW Committee taking the lead from the Human Rights Committee attempted to reign in these reservations by attempting to claim the right to decide whether a reservation was against the object and purpose of the treaty. (12) On the advice of the UN's legal counsel they abandoned this effort. (13) The ICJ in its determination on the Genocide Convention argued that universality is an important goal of human rights and humanitarian treaties, and that some measure of state flexibility should be allowed as long as reservations do not violate the object and purpose of the treaty...